Reports from the Trial against "National Socialist Underground" Accused from the Perspective of the Private Accessory Prosecution

Monthly Archives: September 2013

Witness remains steadfast: Zschäpe, Mundlos and Böhnhardt were in Dortmund in 2006

Today saw the testimony, on rather short notice, of a witness who had contact a victim’s counsel this summer. The witness testified that in March/April 2006, she had seen Zschäpe, Mundlos and Böhnhardt together with a brawny skinhead on the property neighboring hers in Dortmund. She also testified that significant excavation had taken place on that property. She had recognized Zschäpe, Mundlos and Böhnhardt in the press after the NSU had been uncovered.

She had not directly gone to the police because at first she had thought that her knowledge would not be decisive. Upon being asked today, she also stated that she had been afraid of retaliation by Nazis should she testify.

Some media outlets, who apparently had had access to her earlier statements even before the trial date today, have speculated about the possibility of a mix-up. They refer to a statement by the janitor of the neighboring property, who had stated that he had been on the property with his wife and some friends and had done some work there. He claims that his girl friend looks like Beate Zschäpe. According to his statement, he had built a pond on the lot, but had later filled it up again.

Of course, it is hard to assess the witness’ statement, seven years after the fact, concerning the identification of perpetrators based on press coverage of the NSU’s crimes. This identification alone surely cannot suffice as basis for a conviction. On the other hand, the witness has today shown great consistency in her statement vis-à-vis her earlier statement to the federal prosecution and has testified in a very plausible, vivid and self-reflective manner.

She has also stated that it is quite possible that a pond was built in the back part of the lot. On the other hand, she had wondered that a significant part of that work was conducted at nighttime. The witness also testified that she had observed the group including Zschäpe, Mundlos and Böhnhardt for a period of three to five minutes, most of that time using binoculars.

In any normal court trial, such a witness would be a dream witness for a presiding judge and a nightmare for a defense attorney, notwithstanding that a long time has passed since her observations.

The importance of her testimony can only be fully weighed once the other persons who play a role in this context, including the janitor, his girlfriend and the witness’ spouse, have testified. Their testimony is scheduled next week. In any event, her testimony will have to lead to further investigations, particularly into the Nazi scene in Dortmund.

Besides that witness, the court today heard two police officers from Kassel, who reported on the crime scene of the Halit Yozgat murder and the way the deceased had found, showing pictures of the crime scene. They also testified on first investigations concerning the fact that Andreas Temme, an employee of the domestic secret service and contact for informers of that agency, had been present at the crime scene when the murder happened. Witness testimony by Halit Yozgat’s father was moved to tomorrow.

Testimony concerning the murder of Theodoros Boulgarides was as expected – many photos of the crime scene and the apartment, a thorough explanation of the fatal wounds inflicted, an explanation by a weapons expert that the three shots had been fired from the by now well-known Ceska pistol.

By contrast, the questioning of a police officer who had investigated the Yozgat murder case in Kassel showed quite clearly why Nazis were able to kill ten persons without the police even considering a racist or Nazi motive:
In September 2013, more than seven years after the murder of Halit Yozgat, a police officer sits in court and explains in a chipper tone that the relationship of his investigation group to the victim’s family had been just great, that the family had always been very open towards them. That the investigation was conducted primarily against the family, that the telephones of all family members were tapped, that even an undercover investigator was used – all this does not seem, in the mind of this witness, to contradict his story in any way, nor does it seem to be a reason for him to feel regret for the inadequate way he handled the investigation.

A victim’s counsel representing the family relates that the victim’s father had complained to a police officer of Turkish descent, asking that the police stop treating the family as suspects and stating his conviction that his son as well as the other victims had been killed for xenophobic motives. He had stated that he was unable to see any other possibility, that it could only be a madman randomly killing foreigners.

The witness replies that he cannot recall any memo written by that colleague. Also, he claims that Mr. Yozgat had never said something to that effect to him. “Why don’t you ask Mr. Yozgat”, he asks the attorney, after all the relationship of the police and Mr. Yozgat had always been very good.

And what’s more, the witness claims, of course the police had investigated in all possible directions. Upon being asked what investigations had been conducted into a possible racist motive, he stammers: well, they had asked about brawls at the victim’s school that could have been due to racist motives, and they had even talked to a friend of the victim’s. There had also been some clue concerning Iraqi Kurds. But they had not found any reason to consider a religious/political motive for the crime.

It is apparent that until this day, the officer has not realized that his investigative group “Café” has hindered rather than helped in elucidating the background to this crime.

It is likely that his insolent explanation may only serve as a taste of what is to come next week. After all, next week’s trial will see the testimony of Andreas Temme, an officer of the domestic secret service (“Office for the Protection of the Constitution”) who was present at the crime scene at the time of the murder.

On the Frühlingsstraße fire and on the Boulgarides murder case

Today, more photos of the fire in the Frühlingsstraße in Zwickau were shown in court and explained by the arson investigator of the Zwickau police. A total of 11 weapons – 10 handguns and a machine pistol – had been found in the remains of the house, along with 2.5 kilograms of an explosive, most likely gun powder, and some DVDs labeled “NSU”. Presumably these were meant to be sent out along as well.

Marks of spilled gasoline were found not only in the flat, but also in the entry of the house itself. In one of the staircases, the fire was just about to spread to the upper floor.

Investigators also found a number of tea candles standing on the ground with the wicks turned upright. Presumably Zschäpe had spilled the gasoline in the flat and the staircase and had left the tea candles as “detonators” in order to effect an explosion.

As the lead investigator in the Boulgarides case has fallen ill, the witness testimonies of crime scene witnesses in that case were rather inconsequential. Of some interest, however, was the testimony of the murder victim’s former business partner, who described being repeatedly questioned by the police over a period of months, a treatment he described as harassment.

On the murder of Süleyman Taşköprü – „God help us“

The trial day began with the testimony of a Hamburg police detective. The victim’s father had described to him two German men whom he had seen exiting the shop. The day after the murder, a Nuremberg police detective had called the witness and reported on the murders in Nuremberg. One day later, it had been established that the murder in Hamburg was committed using the same murder weapon that had been used in Nuremberg. The witness stated that during the entire investigation, he had not heard from the police State Security Division (the police division investigating crimes with a political background) or the Hamburg “Office for the Protection of the Constitution” (domestic secret service). He claimed that despite the connection to Nuremberg, there had been no leads towards the extreme right, that there had been no basis for investigations in that direction given the lack of a clear description of the suspects.

This is a clear example of the type of institutional racism that has marred the investigations from the get-go. On the one hand, the police spent considerable energy investigating vague hints concerning alleged involvement of the murder victims with “foreign” criminal groups; on the other hand it did not even begin an investigation into the possibility of Nazi perpetrators even though a racist motive was a likely explanation given a series of murders against immigrant men. This was clearly no mere glitch, but a conscious decision. Trying to explain this decision by referring to the lack of an exact description of the perpetrators does, to put it mildly, show a lack of awareness of the problem – does that mean that in case of crimes possibly motivated by racist bias, the German police only investigates against neo-Nazis if they are presented on a silver platter?

A pathologist testifying as an expert witness described the gunshot wounds – the victim was shot in the head once from a caliber 7.65 weapon, the caliber of the Ceska pistol, two shots of the smaller caliber 6.35 had been fired into the back of his head.

Süleyman Taşköprü’s father described the dramatic consequences of the murder for the entire family, above all for the victim’s daughter. He had found his gravely injured son in his shop.

An additional witness corroborated his statement. She had heard Taşköprü’s father call out “God help us” and had entered the shop. A reporter had arrived at the same time as the police; medics had been the last to arrive. The reporter took photographs and behaved in such a disrespectful manner that the witness had thrown eggs at him. The result was that the witness – not the intrusive journalist – was sent home by the police.

On the Mehmet Kubaşik murder case

After the challenges against all judges had been denied as unfounded, the presiding judge quickly returned to the task at hand. The trial day was devoted to the murder of Mehmet Kubaşik on 4 April 2006 in Dortmund, with several police officers testifying as witnesses. Kubaşik’s widow and two of his children, all of whom have joined the proceedings as private prosecutors, were in attendance.

An in-depth questioning of these witnesses proved difficult, however, as the testimony of another witness of central importance for the case, who had originally been called to testify yesterday, had been postponed. The witness had seen two likely suspects “either Junkies or Nazis“, directly before the murder. Thus the police officers testifying today could not be asked questions concerning the treatment of this witness and her testimony. The officers will have to appear in court again, victims‘ counsel for the Kubaşik family have already announced that they will have a number of questions.

Witness counsel for the Yozgat family moved that a witness be called to testify regarding the Kubaşik murder case: according to the motion, the witness had seen Uwe Mundlos, Uwe Böhnhardt and Beate Zschäpe a few days bevore the murder being shown something on a plot of land by a brawny Skinhead. If she testifies the same way in court, this could prove quite important for the further proceedings. On the one hand, her testimony will then show quite clearly what victims‘ counsel and antifascist groups had long suspected, namely that „the Three“ had support from local Nazi scenes in carrying out their murders and bombing attacks. On the other hand, her testimony will show that Zschäpe personally appeared at one of the crime scenes, which again shows her to be a member of the NSU on an equal footing with the two men.

The questioning of police officers showed a significant change on the behavior of the presiding judge, who showed a lot more empathy with the family members of the victim than he had at the beginning of the trial.

Two neighbors of the NSU flat in the Frühlingsstraße in Zwickau also testified. Like others who hasd testified earlier, they had seen Beate Zschäpe come running from the direction of the burning house shortly after the start of the fire on 4 November 2011.

At the end of the trial day, Carsten Schultze surprised the parties by announcing that he will answer questions of the Wohlleben defense after all. The court will fix a date for when this is to happen. By contrast, Holger Gerlach has not yet announced whether or not he is also willing to answer questions – his defense counsel had intimated that this was a possibility shortly before the summer break.

Zschäpe and Wohlleben ask for disqualification of judges for alleged bias

It was planned that the court would deal today with the murder of Mehmet Turgut, who was shot to death in a kebap shop in Rostock on 25 February 2004. Instead the parties dealt with motions for disqualification of all members of the court, which were brought by accused Zschäpe and joined by accused Wohlleben. The background was as follows:

Defense attorney Stahl had asked for an advance of € 77,000 on a lump-sum payment he will later receive for his work in the investigation phase of the trial. Judge Kuchenbauer, the member of the court who is responsible for such matters, had only granted € 5,000. (Zschäpe’s other two defense attorneys Sturm and Heer had not made any request for an advance so far.) This, the Zschäpe defense argued, showed the court trying to keep the defense from being able to do its job properly. Stahl himself had not even shown up for the trial day today.

In addition, Judge Kuchenbauer had stated in his decision that the advance should be paid because the defense’s work was particularly laborious inter alia because of “problems of proof of guilt” (“Probleme des Tatnachweises”). This is read by the Zschäpe defense as evidence for a pre-judgment of the guilt of the accused. In reality, it is probably simply a rather infelicitous wording for “difficulties in fact-finding” or the like – a lapse, of course, which should not happen to a judge at the Court of Appeals.

At first, it was unclear why the defense challenged all members of the court: The decision had been issued by Judge Kuchenbauer as single judge, accordingly the other members of the court only stated, in their written statements on the challenges, that they had taken no part in the issuance of that decision. By contrast, the defense claimed that Kuchenbauer had stated in a phone call to defense attorney Stahl that he would discuss the issue with the other members of the court before issuing a decision. Accordingly, Zschäpe brought an additional challenge against all judges claiming that they had not been truthful in their written statements.

The prosecution as well as private prosecutors had moved that the court continue with the trial while the challenges are pending. This is an option the German Code of Criminal Procedure explicitly grants in order to avoid delays – after all, five witnesses in the Turgut murder case were waiting in the hallway, family members of Turgut’s were in attendance, and a number of additional witneses, including two private prosecutors, were due to give testimony on the following trial days. However, presiding judge Götzl interrupted the hearing and also cancelled the trial date for Wednesday. The trial will thus continue on Thursday. If the other chamber of the court responsible for deciding on the challenges has not issued a decision until then, Götzl will have to decide on Thursday whether to continue nonetheless – or whether to send parties and witnesses home again.

All in all, the trial day was more than disappointing from the point of view of the private prosecution – even more so given that the challenges are far from strong. True, a lump sum of € 5,000 for the investigation phase of a trial like this is insufficient. However, there are other ways to challenge such a decision, particularly given that this was just a question of the advance and given that the much more important question of the payment for the trial phase is still being discussed. The claim that the decision was aimed at hobbling the defense is clearly excessive.

Neither do the formulations in Judge Kuchenbauer’s decision show bias, even though they are quite infelicitous when read in isolation: the context clearly shows that what was meant are simply difficulties in fact-finding.

The question arises what exactly the defense are trying to accomplish. It seems that the Zschäpe defense is trying to build itself up as a kind of victim in order to conceal the fact that its defense strategy has not borne fruit. The defense has so far refrained from confronting the court either as to the substance of the charges or as to procedural issues – it seems that this would not fit their self-image and experience. Instead they seek confrontation only with respect to rather incidental issues. The challenges brought now show the Zschäpe defense again seeking confrontation only with respect to its own interests, in this case the lawyers’ fees, and not to central issues of the defense.

The Zschäpe defense must also ask itself how they can on the one hand claim that three defense counsel are absolutely necessary for the defense, when on the other hand defense counsel Stahl simply remains absent from the trial because of the discussions on payment.

What is more important from the point of view of the private prosecutors is how the court reacts to such challenges – it has again allowed the defense to totally disrupt an entire trial week with unsubstantiated challenges, and very likely private prosecutors have again come to Munich entirely in vain. This despite the fact that the court could easily have continued the trial at least until Wednesday evening.

Witness identifies Böhnhardt and Mundlos as murderers of İsmail Yaşar

Today’s trial saw a remarkable testimony by a bakery shop assistant who had apparently passed by Ismail Yasar’s kebap shop directly after his murder and who had seen two bicyclists there. One of the two was just putting into the other’s backpack an object about 20 cm in length and wrapped in a plastic bag – this may very well have been the murder weapon. The witness had wondered why the owner of the kebap shop was nowhere to be seen.

She had stated all this already in her first statement to the police and had also pointed out that the two bicyclists had certainly not been of Southern European origin. Nonetheless, when the police had shown her pictures of potential suspects, many of these had shown men of Turkish origin.

The witness had also found a striking similarity between the two perpetrators of the bombing attack in the Keupstraße in Cologne, who had been captured on video, and the bicyclists in Nuremberg. After the NSU was uncovered, she also found that Böhnhardt und Mundlos looked very similar to the bicyclists she had seen in front of Ismail Yasar’s kebap shop.

First day after the summer break

The first trial day after the summer break was rather uneventful. The first witness was a police officer from the Federal Bureau of Investigations who had been present when Gerlach showed the police the flat where he had handed over the gun to “the Three”. The officer confirmed all this upon questioning by the presiding judge.

In preparation for the testimony of further witnesses concerning several crimes who had seen the likely perpetrators on bikes, several videos and photographs were shown – a video bulletin concerning the search for Zschäpe, Böhnhardt and Mundlos, footage from a surveillance camera in the Keupstraße in Cologne from the day of the bombing attack showing the perpetrators on bikes, as well as a number of pictures of the fire in the Frühlingstrasse in Zwickau.

One witness from Nuremberg confirmed that she had seen two byciclists dressed in black shortly before the murder of İsmail Yaşar and very close to the crime scene. She had become afraid because one of the two men had stared at her. When driving away, she had heard four or five shots, but had pushed that thought aside and explained the noised to herself as noise from playing children.

In her first police examination, she had described one of the perpetrators as “of Southern European origin”, but that she had called the police the next day and described him instead as well-tanned.